Law Commons^™

Food Stamps, Unjust Enrichment And Minimum Wage, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

A number of large retail chains with monopsony power, such as Walmart, pay their low level employees so little that these employees are eligible for food stamps and other governmental benefits. In addition to paying low wages, these chains often have hourly restrictions so that their employees are not eligible for overtime pay. At times the chains violate the wage and hour provisions of the Fair Labor Standards Act (FLSA) by making hourly employees work “off the clock,” a practice known as wage theft.

One of the reasons these low wage retailers can pay so little is because their employees …

The Duty Of Responsible Administration And The Problem Of Police Accountability, Charles F. Sabel, William H. Simon

Faculty Scholarship

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing …

Can Parallel Lines Ever Meet? The Strange Case Of The International Standards On Sovereign Debt And Business And Human Rights, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

This special issue is a cooperation of the Yale Journal of International Law and the United Nations Conference on Trade and Development (UNCTAD). It emerged from UNCTAD’s work on sovereign debt workouts, specifically from its Working Group on a Sovereign Debt Workout Mechanism (2013 to 2015). The working group developed a Roadmap and Guide for Sovereign Debt Workouts, published in 2015. It proposes an incremental approach to sovereign debt workouts that relies on the continuous, progressive development of sovereign debt restructuring practice. This work has inspired the adoption of Basic Principles for Sovereign Debt Restructuring by the United Nations General …

Private Standards And The Wto: Reclusive No More, Petros C. Mavroidis, Robert Wolfe

Faculty Scholarship

Private standards are increasing in number, and they affect trade, but their status in the WTO remains problematic. Standards-takers are typically countries with little bargaining power, who cannot affect their terms of trade and thus, even if they possess domestic antitrust laws, will find it hard to persuade standard-setters to take account of their interests. Our concern is to bring more of these standards within the normative framework of the trade regime – that is, we worry that these private forms of social order can conflict with the fundamental norms of transparency and non-discrimination. The WTO membership has consumed itself …

The Wto Dispute Settlement System 1995-2016: A Data Set And Its Descriptive Statistics, Louise Johannesson, Petros C. Mavroidis

Faculty Scholarship

In this paper, we provide some descriptive statistics of the first twenty years of the WTO (World Trade Organization) dispute settlement that we have extracted from the data set that we have put together, and made publicly available.

The statistical information that we present here is divided into three thematic units: the statutory and de facto duration of each stage of the process, paying particular attention to the eventual conclusion of litigation; the identity and participation in the process of the various institutional players, that is, not only complainants and defendants, but also third parties, as well as the WTO …

Ask For The Moon, Settle For The Stars: What Is A Reasonable Period To Comply With Wto Awards?, Petros C. Mavroidis, Niall Meagher, Thomas J. Prusa, Tatiana Yanguas

Faculty Scholarship

The World Trade Organization (WTO) dispute settlement process allows a defending Member a “reasonable period of time” (RPT) to implement any findings that its contested measures are inconsistent with WTO law. If agreement on this RPT cannot be reached, Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) provides for the possibility of arbitration on the length of the RPT. The DSU provides limited guidelines on the RPT, stating only that it should not normally exceed 15 months. In practice, Arbitrators have developed the standard that the RPT should reflect the shortest possible period …

Trade, Social Preferences, And Regulatory Cooperation: The New Wto-Think, Thomas J. Bollyky, Petros C. Mavroidis

Faculty Scholarship

This paper advocates changes in the corporate governance of the World Trade Organization (WTO) to reflect the decline in tariffs and other border restraints to commerce and the emerging challenges of advancing freer trade and better regulation cooperation in a world economy dominated by global value chains. Together, these changes form an integration strategy that we refer to as the new WTO Think. This strategy remains rooted in the original rationale of the General Agreement on Trade and Tariffs (GATT) of reducing the negative externalities of unilateral action and solving important international coordination challenges, but is more inclusive of regulators …

The Gang That Couldn't Shoot Straight: The Not So Magnificent Seven Of The Wto Appellate Body, Petros C. Mavroidis

Faculty Scholarship

The WTO Appellate Body (AB) has produced a volume-wise important body of case law, which is often difficult to penetrate, never mind classify. Howse (2016) has attempted a very lucid taxonomy of the case law using the standard of review as benchmark for it. His conclusion is that the AB is quite cautious when facing nondiscriminatory measures, especially measures relating to the protection of human life and health, while it has adopted a more intrusive (into national sovereignty) standard when dealing with trade measures (like antidumping), which are by definition discriminatory as they concern imports only. In my response, I …

Mfn Clubs And Scheduling Additional Commitments In The Gatt: Learning From The Gats, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Scheduling additional commitments for policies affecting trade in goods in the GATT has been plagued by two sources of ambiguity: the treatment of changes introduced unilaterally by members subsequent to an initial commitment, and the treatment of new commitments by WTO members pertaining to nontariff policy measures affecting trade in goods. This is not the case for trade in services, as the GATS makes explicit provision for additional commitments to be scheduled. Neither secondary law, in the form of decisions formally adopted by the WTO membership, nor case law has clarified the situation for trade in goods. This matter is …

Appraising The "Merger Price" Appraisal Rule, Albert H. Choi, Eric L. Talley

Faculty Scholarship

This paper develops an auction design framework to study how best to measure “fair value” in post-merger appraisal proceedings. Our inquiry spotlights an approach recently embraced by some courts benchmarking fair value against the merger price itself. We show that merger price deference effectively nullifies the role that appraisal can potentially play in establishing a de facto reserve price for company auctions, thereby depressing both acquisition prices and target shareholders’ expected welfare relative to both the optimal appraisal policy and a variety of other valuation measures. We also examine conditions under which deference to the merger price can be optimal. …

Juvenile Sentencing Reform In A Constitutional Framework, Elizabeth S. Scott, Thomas Grisso, Marsha Levick, Laurence Steinberg

Faculty Scholarship

In the past decade, the Supreme Court has transformed the constitutional landscape of juvenile crime regulation. In three strongly worded opinions, the Court held that imposing harsh criminal sentences on juvenile offenders violates the Eighth Amendment prohibition against cruel and unusual punishment. Roper v Simmons in 2005 prohibited the imposition of the death penalty for a crime committed by a juvenile. Five years later, Graham v. Florida held that no juvenile could be sentenced to life without the possibility of parole (LWOP) for a nonhomicide offense. Then in 2012, Miller v. Alabama struck down statutes that required courts to sentence …

The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler

Faculty Scholarship

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative "conscience clauses" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties …

Maximinimalism, Jamal Greene

Faculty Scholarship

When John Roberts became Chief Justice of the United States more than a decade ago, commenters frequently described him as a minimalist. Although Chief Justice Roberts himself resisted this label, he fairly inspired it by advocating for more consensus among his colleagues and by famously recounting to a Georgetown Law Commencement audience his view that “[i]f it is not necessary to decide more to dispose of a case ... it is necessary not to decide more.” The suggestion that the Court decide significant issues one case at a time recalls the work of Cass Sunstein, the American academy’s most articulate …

Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg

Faculty Scholarship

In the past decade, much attention has focused on developmental brain research and its implications for the regulation of crime. Public and policy interest has been directed primarily toward juveniles. In light of recent research, courts and legislatures increasingly have rejected the punitive response of the 1990s and embraced a developmental approach to young offenders. Of particular importance in propelling this trend has been the framework offered by the U.S. Supreme Court in a series of Eighth Amendment opinions that have rejected harsh adult sentences for juveniles. These decisions, supported by adolescent brain research, rested on two empirically based principles: …

Bringing International Tax Policy Into The 21st Century, Michael J. Graetz

Faculty Scholarship

Michael J. Graetz delivered the following remarks at the Tax Policy Center's "A Corporate Tax for the 21st Century" conference on July 14 in Washington. These remarks are substantially taken from his April 2015 Ross Parsons Lecture at the University of Sydney Law School.

Follow The Money: Essays On International Taxation – Introduction, Michael J. Graetz

Faculty Scholarship

Publicity about tax avoidance techniques of multinational corporations and wealthy individuals has moved discussion of international income taxation from the backrooms of law and accounting firms to the front pages of news organizations around the world. In the words of a top Australian tax official, international tax law has now become a topic of barbeque conversations. Public anger has, in turn, brought previously arcane issues of international taxation onto the agenda of heads of government around the world.

Despite all the attention, however, issues of international income taxation are often not well understood. This Introduction outlines a collection of essays, …

Impact Investing As A Form Of Lobbying And Its Corporate-Governance Effects, Andrzej Rapaczynski

Faculty Scholarship

Impact investment is attractive to many because it seems to combine support for progressive causes with an apparent commitment to the principles of a market economy. In fact, however, a rational impact investor is not simply creating demand for certain types of corporate actions; he/she is attempting to use corporate governance mechanisms to influence fiduciary decisions of the management. The cost of this tactic for the health of the capitalist economy is potentially very considerable. The American capitalist system relies heavily on a relatively fragile corporate governance arrangement in which the agency problems of a modern corporation are minimized by …

Vilifying The Vigilante: A Narrowed Scope Of Citizen's Arrest, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

Ira P. Robbins* The doctrine of citizen’s arrest in the United States has been ignored for far too long. In every jurisdiction in the United States, a private person may lawfully detain another and often may even use physical force to do so. Placing such power in the hands of ordinary, untrained individuals creates the possibility that citizens will misuse or abuse the privilege, sometimes with serious consequences for both the arrestor and the arrestee. This risk is compounded by the disparate treatment of the citizen’s arrest doctrine in different jurisdictions and the ambiguities inherent in many of the doctrine’s …

National Legal Traditions At Work In The Jurisprudence Of The Court Of Justice Of The European Union: Symposium: Foreign Law In Constitutional Courts, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

Numerous scholars have commented on the judicial style of the Court of Justice of the European Union and its non-Herculean judges, generally disapproving of its minimalist reasoning, lack of transparency, and failure to draw openly on comparative legal sources to avoid inconsistencies and weaknesses in its legal reasoning. In a debate where both historians and sociologists have provided new avenues of research, the paucity of comparative lawyers is surprising because European law is a quintessential example of a transnational legal order. Since its inception, European judges, advocates general, and lawyers in Luxembourg have drawn inspiration from the different national legal …

Supranationalism And Foreign Law At The Court Of Justice Of The Eu Symposium: Foreign Law In Constitutional Courts: Introduction, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

By virtue of its peculiar position as the world’s first supranational court, the comparative legal method and the use of foreign law hold a particular significance for the Court of Justice of the European Union (CJEU, or “the Court”). This supranational characteristic, however, places the Court under an intense and unique set of judicial and political pressures. The Court must ensure the autonomy, exclusivity, and functioning of the EU’s legal order, while remaining sensitive to the fact that it is positioned as a central node in a network of national, international, and foreign courts that are profoundly affected by its …

President Obama's Approach To The Middle East And North Africa: Strategic Absence, Paul Williams

Scholarly Articles in Law Reviews & Journals

Many commentators argue that the White House does not have a policy regarding the Middle East and North Africa. Based on observations of the White House's foreign policy decisions over a breadth of seven years, this article argues that The White House does have a clear policy and it is one of Strategic Absence. The term Strategic Absence is used to describe political behavior that arises from a belief that sometimes, in foreign affairs, it is better to be absent rather than present. Strategic Absence has led to a degradation of American influence in the Middle East and has contributed …

Applying The Health Justice Framework To Diabetes As A Community-Managed Social Phenomenon, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: In East Harlem, it is possible to take any simple nexus of people -the line at an A.T.M., a portion of a postal route, the members of a church choir -and trace an invisible web of diabetes that stretches through the group and out into the neighborhood, touching nearly every life with its menace.Ten years ago, the New York Times published "Bad Blood," a series of articles examining the impact of diabetes on the residents of New York City. In the years that followed, New York pioneered a series of groundbreaking legal interventions, including implementing measures to track diabetes …

Judge Shopping In The Eastern District Of Texas, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Judge Rodney Gilstrap has a lot of patent cases on his docket. In fact, in 2015 there were 1,686 patent cases that were filed and assigned to Judge Gilstrap, an astronomical number for a single judge. Judge Gilstrap — one of eight federal judges who sit on the Eastern District of Texas — is so popular with patent plaintiffs that over one-fourth of all patent cases in the country are heard by him. This Article addresses the problems with allowing this judge shopping to occur. It reviews the scholarship on the topic that is almost universally opposed to judge shopping …

Genealogies Of Cost–Benefit Analysis In Transatlantic Regulatory Cooperation, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

Cost–benefit analysis (CBA) has become a quintessential tool in administrative law informing a variety of modes of regulatory governance. It provides a justification for the regulation of markets based on a quasi-scientific and seemly neutral logic to assess the impact of secondary legislation by government agencies. A new frontier for CBA is the promotion of trade liberalization. It features prominently in the regulatory chapter of the Transatlantic Trade and Investment Partnership (TTIP). During the TTIP negotiations, scholars deployed CBA as a “neutral” tool to achieve greater convergence or reassert divergence and experimentalism in regulatory governance across the Atlantic. A genealogical …

Rendered Invisible: African American Low-Wage Workers And The Workplace Exploitation Paradigm, Llezlie Coleman

Scholarly Articles in Law Reviews & Journals

The narrative of low-wage worker exploitation has increasingly narrowed in focus to reflect the experiences of undocumented immigrant workers whose immigration status makes them particularly vulnerable to wage theft and other denials of their substantive workplace rights. Indeed, much of the scholarship in this area rests solidly at the intersection of immigrant justice and employment law. This article disrupts this paradigm by arguing that this limited narrative has rendered African American low-wage workers invisible. It also draws from the voices of low-wage worker advocates who have borrowed from current activism to announce that #BlackWorkersMatter. Given the role of paradigms in …

Judicial Lobbying, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

Abstract: Judges who lobby Congress for legal reform tread into an ethical gray area: lobbying is legally permissible, but generally frowned upon. Currently, there are no legal or ethical constraints on judges speaking publicly regarding proposed legislative changes, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as the result of haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing that should be done-not to mention little that could be done-to restrict judges from lobbying. Judicial lobbying occurs, in large part, when …

Christopher Columbus Langdell And The Public Law Curriculum, Peter L. Strauss

Faculty Scholarship

Teaching materials in public law courses typically rely almost wholly on judicial opinions as their primary materials, amplified by selections from the secondary literature. Constitutional text may appear independently, but statutory text rarely does, and the materials of the legislative process are generally absent. In administrative law course books, administrative opinions and the materials of rulemaking rarely fever appear. Yet these are primary materials with which lawyers must deal with increasing frequency. Lawyers encounter statutes, rules, administrative policies, and administrative disputes without judicial guidance, looking forward and not backward in time. The growth of courses in legislation and the regulatory …

Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the "new policing." This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the "newpolicing"gave rise in the 1990s to popular, legal, political, and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated Whites, even when controlling for local social and …

Aids Activists, Fda Regulation, And The Amendment Of America's Drug Constitution, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

This Article explores how AIDS activists, desperate for access to potentially life-saving pharmaceuticals, permanently transformed America’s “drug constitution.” Their advocacy altered the FDA’s interpretation and application of the federal Food, Drug, and Cosmetic Act (FDCA) so as to expedite the availability of new, unproven drugs for critical illnesses, thus enhancing individual patients’ autonomy to make therapeutic choices without government interference. The FDCA is more than simple set of instructions to a federal agency — it is a source of vitally important and deeply entrenched institutional and normative frameworks. Like major civil rights, antitrust, and environmental statutes, the FDCA should be …

Enforcement Discretion Under Attack: Implications For Fda, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

Author's Note: On June 23, as this article was going to press, the Supreme Court deadlocked 4-4 in U.S. v. Texas, thus affirming a preliminary injunction against implementation of the Obama Administration’s deferred-action program for millions of undocumented immigrants. Because the Court’s terse per curiam decision established no precedent, the questions that the case raised regarding the permissible scope of administrative enforcement discretion remain unresolved on the national level. The Supreme Court will likely consider them again—after a decision on a permanent injunction in the same case, in a similar immigration dispute, or perhaps in another field of administrative law. …